MEMORANDUM

To:

From: Glenn Alvin R. Caraig

Alvie Melo
Kate Cizcar
Aldrin De Guzman

Subject: Memorandum of Law on the Ideal Constitutional Structure for Purposes

of Making International Part of Domestic Law

I. Introduction

What constitutes the international law? Is international really a law? Why are we
or the states bound to obey international law? It is unconvincing that the international
law is weak and helpless that it can be neglected without no consequences, if breached,
does not provide a concrete possibilities to punish such entities or even state. As we
know, International law is composed for its greater part of the principles and rules and
conduct which States feel themselves bound to observe, and therefore, do commonly
observe in their relations with each other. According to Rosalyn Higgins, International
law is not rules. It is a normative system. But as we defined International law it is the
law that governs the legal relations between or among sovereign states or nations, set of
rules generally regarded and accepted binding in relations between states and between
nations established by custom or treaty and recognized by nations as binding in their
relations with one another. According to Jeremy Bentham, public international law are
the body of legal rules, norms, and standards that apply between sovereign states and
other entities that are legally recognized as international actors. But what is the effect or
relevance of international law as to the states, why do states should be bound by this
laws?
The doctrine of incorporation plays an important role, in the case of Tañada v. Angara,
G.R No. 118295, that the rules of international law form part of the law of the land and
no legislative action is required to make them applicable in a country. By this doctrine,
the state can be bound by generally accepted principles of the international law which
are considered to be automatically part of states own laws. This doctrine is applied
whenever municipal tribunals are confronted with situations in which there appears to
be a conflict between a rule of international law and the provisions of the constitution or
statute of the local state. In a situation however, where the conflict is irreconcilable and
a choice has to be made between a rule of international law and municipal law,
jurisprudence dictates that municipal law should be upheld by the municipal courts for
the reason that such courts are organs of municipal law and are accordingly bound by it
in all circumstances. The fact that international law has been made part of the law of the
land does not pertain to or imply the primacy of international law over national or
municipal law in the municipal sphere. The doctrine of incorporation, as applied in
most countries, decrees that rules of international law are given equal standing with,
but are not superior to, national legislative enactments. Accordingly, the principle of
lex posterior derogat priori takes effect – a treaty may repeal a statute and a statute may
repeal a treaty. In the case of Secretary of Justice v. Lantion, G.R. No. 139465, in states
where the Constitution is the highest law of the land, such as the Republic of the
Philippines, both statutes and treaties may be invalidated if they are in conflict with the
Constitution.
As opposed to the doctrine of transformation, which is based upon the
perception of two distinct systems of law operating separately, and maintains that
before any rule or principle of international law can have any effect within the domestic
jurisdiction, it must be expressly and specifically 'transformed' into municipal law by
the use of the appropriate constitutional machinery. This doctrine grew from the
procedure whereby international agreements are rendered operative in municipal law
by the device of ratification by the sovereign and the idea has developed from this that
any rule of international law must be transformed, or specifically adopted, to be valid
within the internal legal order.